The Eastern Band of Cherokee Indians’ Office of Internal Audit commissioned Arizona-based Veriti Consulting LLC to complete the report following a General Election in which recounts yielded substantially different ballot counts than the machine results published Election Day. The most dramatic swing in election results came from the Birdtown community, with the recount results putting third-place Ashley Sessions in second place over incumbent Albert Rose, who had held the second position. The Board of Elections ordered a runoff election between the two candidates, and Rose won that race by a wide margin — he now holds the second Birdtown seat.
“The results of Veriti’s investigation strongly suggest ballot tampering occurred,” Sharon Blankenship, the tribe’s chief audit and ethics executive, wrote in a Jan. 30 cover letter to the Jan. 29 report.
According to the audit results, both used and unused ballots were loosely — at best — secured between the General Election Sept. 7 and the recount Sept. 13, and the fact that the number of ballots with only one Tribal Council candidate marked diminished between the two counts suggests that somebody added votes to these undervoted ballots.
In Tribal Council elections, each community selects two representatives to sit around the horseshoe, so each voter is allowed to vote for two of four General Election candidates. If a voter feels strongly about getting one particular candidate in office, he or she may check only one box instead of the permitted two. Cherokee uses paper ballots, which are then read and tallied using a machine.
According to the voting machine report generated on Election Day, 103 of 193 early voting ballots for Birdtown were undervoted ballots. However, when Veriti performed a count of the ballots as stored after the recount, only 27 undervote ballots were found. An undervote tally was not recorded on the day of the recount itself.
Veriti found a discrepancy of 76 undervote ballots. The Birdtown recount results showed 86 more ballots than originally tallied Election Day.
When the issue was first raised in September, Automated Elections Services, the company with which the tribe contracts for election services, told Tribal Council that the problem was likely that the pens used to mark the ballots were low in carbon and therefore not read properly by the machines. Meanwhile, the EBCI Board of Elections had blamed it on the fact that, when poll workers ran out of early voting ballots, they’d instead used absentee ballots marked as early voting ballots at the top. This extra marking had likely caused the voting machines to fail to read the votes correctly, Board of Elections Chair Denise Ballard told The Smoky Mountain News in September.
In Birdtown, 55 of the 153 early voting ballots were cast on blue absentee ballots rather than on green early voting ballots. It was the tribe’s first year to provide early voting.
The Veriti report did not address whether the substituted ballots could have caused an issue for the machine but debunked AES’ claim that low-carbon pens were the problem.
“There was no difference in the pens provided by AES at Birdtown and the other communities,” the report reads. “In addition, per Veriti’s research of the type of tabulator used by AES, the tabulator is not necessarily carbon-sensitive, other than a weakness reading red ink. It will read blue and black pens and No. 2 pencils. There was no red ink on any of the ballots.”
While the alleged ballot tampering changed the election outcome in Birdtown only, the report also analyzed voting in the Wolfetown and Big Y communities, concluding undervote and early ballot tampering could have occurred there too, though in smaller numbers that did not affect the election’s outcome.
If somebody wanted to tamper with ballots, the report continued, there were many ways to make it happen. Security surrounding the elections process had all manner of weaknesses, and these should be addressed immediately.
After polls closed Sept. 7, ballots were transported by police escort from the polling places to the Tribal Council House, where they were read by voting machine tabulators. They were then placed in plastic bins, sealed, and stored in the vault at the Bureau of Indian Affairs office.
However, unvoted ballots were stored, unsecured, on open shelving in the Board of Elections office, to which an “unknown number of people” have the key.
The bins of ballots in the BIA vault weren’t much more secure than that, it seems. While BIA personnel told Veriti investigators that the vault is always locked, Board of Elections members told Veriti that it rarely is.
“Veriti inspected the BIA Vault on four separate occasions, noting it was unlocked each time,” the report reads. “On one occasion, all BIA staff were in a meeting room at the opposite side of the BIA building while Veriti accessed the vault unnoticed. Veriti observed only one time where the vault appeared to be locked. Veriti also noted the room in which the BIA Vault is located was unstaffed and unlocked, which would have allowed anyone inside the BIA building to gain access to the ballots and election materials.”
Cherokee BIA Superintendent William McKee told Veriti that cameras in the BIA hallways record all activity, with data stored for 30 days. However, at the time of Veriti’s visit it had been more than 30 days since any election activity.
Once inside the vault, it would have been easy for somebody to tamper with the ballots, Veriti concluded. While each bin was sealed with a numbered zip tie, most of the bins were pretty easy to break into.
“With minimal effort,” the report reads, “we opened the sealed bins and slid our arm in and removed the ballots.”
The document goes on to present photos of Veriti investigators slipping their hands into the sealed bins and pulling ballots out, all without breaking the seal.
The absentee ballot bin was one of the few bin types that could not be broken into this way, and evidence indicates that the absentee bin was accessed using a different method.
“Upon opening the Absentee Ballot bin, 14 broken seals were located inside the bin, which indicates the bin had been opened on at least seven occasions,” the report says. “However, no log was included inside the bin to indicate the reason it was opened. This is a material weakness in the storage of election materials. According to AES staff, the fact the Absentee Ballot bin had been opened seven times was unusual.”
AES provides seals with pre-stamped numbers, the report said, but the numbers are not sequential and “Election Board personnel also do not maintain a proper log of the use of seals, nor are they located in a physically secured location.” Veriti investigators found two types of generic seals used on ballot storage bins in addition to the AES-provided seals. Board of Elections staff told Veriti that there have been no purchases of non-AES seals.
“Since these types of seals were used to secure the bins, it is possible an unauthorized person opened the bins between Election Day and the Recount and altered ballots, then resealed the bins using the generic seals,” the report reads.
Need for action
The Veriti report was delivered early in the same week that Tribal Council held its Feb. 1 legislative session, and several councilmembers expressed grave concerns with its results.
“All the years past, every time we had a recount here there would be one or two changes,” said Councilmember Perry Shell, of Big Cove. “This time there were huge numbers that were changed. I think this needs to be presented to the public, and the people whose right to vote was violated needs to know.”
“We need to get our integrity back to our voting system here,” said Councilmember Boyd Owle, of Birdtown. Owle was the top Birdtown vote-getter in both the Election Day and recount results. “If we have to have a police officer standing by the ballot boxes, that’s maybe what we need to do.”
The audit holds perhaps the most importance for Councilmember Albert Rose, of Birdtown, as the recount results would have had Sessions holding the seat he now sits in. He called for further investigation into the issue to determine exactly who was responsible for the alleged ballot tampering.
“They (Veriti) can’t determine person-to-person that committed this, but I’m sure we can find out. We need to find out,” Rose said, adding, “They need to bring the charges, and that’s what I want to see proceed.”
Principal Chief Richard Sneed agreed that some type of action needs to follow the report’s release, and that the possibility of criminal charges should certainly be on the table.
“When we’re dealing with audits, it’s not enough to read it and say, ‘That needs to be corrected,’” Sneed said. “The Board of Elections needs to be given direction, and they need to come back with a plan on how to correct it.”
Ballard did not return requests for comment. Sessions declined to comment, citing the possibility of future litigation surrounding the outcome of an election she has consistently said was stolen from her by the illegal use of a runoff election.
The Tribal Council is planning a work session on the issue for 10 a.m. Friday, Feb. 16.